Subject: The 2010 special session of the legislature made
statutory changes to ORS 374.310 which were signed into law by the governor in
March 2010. Temporary rules were approved by the Oregon Transportation
Commission on July 21, 2010 to bring OAR chapter 734 division 51 rules into
compliance with the changes in ORS 374.310. These amendments replace the
temporary rules and correct and update citations and references contained in
the access management rules.

Rules Coordinator: Lauri Kunze—(503) 986-3171

734-051-0020

Purpose and Applicability of Rules

(1) The purpose of division 51 rules is to provide a
safe and efficient transportation system through the preservation of public safety,
the improvement and development of transportation facilities, the protection of
highway traffic from the hazards of unrestricted and unregulated entry from
adjacent property, and the elimination of hazards due to highway grade
intersections. These rules establish procedures and criteria used by the
Department to govern highway approaches, access control, spacing standards,
medians and restriction of turning movements in compliance with statewide
planning goals and in a manner compatible with acknowledged comprehensive plans
and consistent with Oregon Revised Statutes (ORS), Oregon Administrative Rules
(OAR), and the 1999 Oregon Highway Plan (OHP).

(2) The 1999 Oregon Highway Plan dated March 18, 1999
and all amendments approved by the Oregon Transportation Commission as of the
adoption of this rule are hereby adopted by reference as the policy framework
and investment priorities for implementing access management.

(2) “Access Control” means no right of access exists
between a property abutting the highway and the highway. The right of access
may have been acquired by the Department or eliminated by law.

(3) “Access Management Strategy” means a project
delivery strategy that identifies the location and type of approaches and other
necessary improvements that will occur primarily within the highway right of
way and that is intended to improve current conditions of the section of
highway by moving in the direction of the access management spacing standards.

(4) “Access Management Plan” means a plan for managing
a designated section of highway or the influence area of an interchange to
maintain and improve highway performance and safety. It is intended to improve
current and future conditions on a section of highway or interchange by moving
in the direction of the access management spacing standards and may address
local street connectivity, local street improvements and local plans and land
use regulations. An Access Management Plan may be developed independent of or
in conjunction with a highway or interchange project; however, an Access
Management Plan is not a highway or interchange project.

(5) “Access Mitigation Proposal” means a proposal
offered by an applicant that identifies the location and type of approaches and
necessary improvements to the highway and that is intended to improve current
conditions of the section of highway by moving in the direction of the access
management spacing standards by combining or removing approaches resulting in a
net reduction of approaches to that section of highway. An Access Mitigation
Proposal must be approved by the Department, agreed to by all affected property
owners, and real property interests must be recorded.

(6) “Alternate Access” means the physical existence of
other means to access a property than the proposed approach, such as an existing
public right of way, another location on the subject state highway, an easement
across adjoining property, a different highway, a service road, or an alley,
including singularly or as a joint approach, but without a conclusive
determination that the alternate access is “reasonable” as defined in section
(51) of this rule.

(7) “Appealable decision” means a decision by the
Department that may be appealed through a Region Review as set forth in OAR
734-051-0345 or a Contested Case Hearing as set forth in OAR 734-051-0355. An
appealable decision includes a decision to deny an application or to deny a
deviation or approval of an application with mitigation measures.

(8) “Applicant” means a person, firm or corporation, or
other legal entity that applies for an approach or deviation including an owner
or lessee, or an option holder of a property abutting the highway, or their
designated agent.

(9) “Application” means a completed form Application
for State Highway Approach including any required documentation and attachments
necessary for the Department to determine if the application can be deemed
complete.

(10) “Approach” means a legally constructed, approach
road or private road crossing, recognized by the Department as grandfathered or
existing under a valid Permit to Operate.

(11) “Approach road” means a legally constructed,
public or private connection, providing vehicular access to and/or from a
highway and an adjoining property.

(14) “Construction Permit” means a Permit to Construct
a State Highway Approach including all attachments, required signatures, and
conditions and terms.

(15) “Crash history” means at least the three most
recent years of crash data recorded by the Department’s Crash Analysis and
Reporting Unit.

(16) “Day” means calendar day, unless specifically
stated otherwise.

(17) “Deemed complete” means an application and all
required supplemental documentation necessary for the Department to review and
assess the application and determine if a Construction Permit or a Permit to
Operate may be issued.

(18) “Department” or “ODOT” means the Oregon Department
of Transportation.

(20) “Division 51” means Oregon Administrative Rules
(OAR) 734-051-0010 through 734-051-0560 and Tables 1, 2, 3, 4, 5, 6 and 7
adopted and made a part of division 51 rules and Figures 1, 2, 3 and 4 adopted
and made a part of division 51 rules.

(21) “Double-Frontage Property” means a property with a
right of access to more than one state highway.

(23) “Expressway” means a segment of highway defined in
the 1999 Oregon Highway Plan and classified by the Oregon Transportation
Commission.

(24) “Fair Market Value” means the amount in cash, or
on terms reasonably equivalent to cash, for which in all probability the
property would be sold by a knowledgeable owner willing but not obligated to
sell to a knowledgeable purchaser who desired but is not obligated to buy.

(25) “Freeway or Expressway ramp” means all types,
arrangements, and sizes of turning roadways for right or left turning vehicles
that connect two or more legs at an interchange and the components of a ramp
area terminal at each leg and a connection road, usually with some curvature
and on a grade.

(26) “Grandfathered approach” means a legally
constructed approach existing prior to 1949. A property owner has the burden to
prove an approach is grandfathered based upon existence prior to 1949. For
purposes of this Division, grandfathered approaches also include approaches
presumed in compliance as set forth in OAR 734-051-0285(7) and approaches
intended to remain open that were improved in conjunction with a Department
project prior to April 1, 2000, as set forth in OAR 734-051-0285(9).

(27) “Grant of Access” means the conveyance or evidence
of the conveyance from the Department of a specific right of access at a
location where an abutting property currently does not have that specific right
of access.

(28) “Highway mobility standards” mean the established
standards for maintaining mobility as defined in the 1999 Oregon Highway Plan.

(30) “Indenture of Access” means a deeded conveyance
that changes the location, width, or use restrictions of an existing
reservation of access.

(31) “Infill” means development of vacant or remnant
land passed over by previous development and that is consistent with zoning.
Infill occurs in urban areas. It may also occur in rural areas on commercial or
industrial zoned land where the land has been developed into an urban block
pattern including a local street network, and the posted highway speed is at or
below 45 miles per hour.

(32) “Influence area of an interchange” means the area
1320 feet from an interchange ramp terminal measured on the crossroad away from
the mainline.

(33) “Interchange” means a system of interconnecting
roadways in conjunction with one or more grade separations that provides for
the movement of traffic between two or more roadways or highways on different
levels.

(34) “Interchange Area Management Plan” means a plan
for managing a grade-separated interchange area to ensure safe and efficient
operation between connecting roadways and to protect the functional integrity,
operations, and safety of the interchange. An Interchange Area Management Plan
may be developed independent of or in conjunction with an interchange project
and may address local street connectivity, local street improvements and local
plans and land use regulations. An Interchange Area Management Plan is not an
interchange project.

(35) “Intersection” means an area where two or more
highways or an approach and a highway join or cross at grade.

(36) “Land Use Action” means an action by a local
government or special district concerning the adoption, amendment or
application of the statewide planning goals, a comprehensive plan provision, or
a land use regulation including zoning or subdivision codes.

(38) “Mitigation Measures” mean conditions,
improvements, modifications, and restrictions set forth in OAR 734-051-0145 and
required by the Department or initiated by an applicant for approval of a
deviation or an application.

(39) “Move in the direction of” means that changes in
the approach(es) to a property abutting the highway would bring a site closer
to conformance with existing highway standards including where existing
approaches to the highway or expressway are combined or eliminated resulting in
a net reduction in the number of approaches to the highway or expressway,
improvements in spacing of private approaches or public approaches, or improvements
to intersection sight distance.

(40) “Peak hour” means the highest one-hour volume
observed on an urban roadway during a typical or average week or the 30th
highest hourly traffic volume on a rural roadway typically observed during a
year.

(41) “Permit to Construct” means a Permit to Construct
a State Highway Approach including all attachments, required signatures,
conditions and terms, and performance bonds or insurance.

(42) “Permit to Operate” means a Permit to Operate,
Maintain and Use a State Highway Approach including all required signatures and
attachments, and conditions and terms. A Permit to Operate is not required for
a public approach. However the Department may issue a Permit to Operate for a
public approach upon agreement with the governing city or county.

(43) “Permitee” means a person, firm or corporation, or
other entity holding a valid Permit to Operate including the owner or lessee of
the property abutting the highway or their designated agent.

(44) “Permitted approach” means a legally constructed
private or public approach existing under a valid Permit to Operate.

(45) “Planned” means not constructed but adopted into a
comprehensive plan or transportation system plan in accordance with
administrative procedures of OAR 660-012 and ORS Chapter 197.

(46) “Private approach” means an approach serving one
or more properties and is not a public approach as defined in section (50) of
this rule.

(47) “Private road crossing” means a legally
constructed, privately owned road designed for use by trucks which are
prohibited by law from using state highways, county roads, or other public
highways.

(48) “Professional Engineer” means a person registered
and holding a valid certificate to practice engineering in the State of Oregon,
as provided in ORS 672.002 through 672.325, with expertise in traffic
engineering, as provided in OAR 820-040-0030.

(49) “Project Delivery” means the allocation of
resources to plan and construct new highways or modify and improve existing
highways.

(50) “Public approach” means an existing or planned
city street or county road connection that provides vehicular access to the
general public from a highway. An existing city street or county road
connection must be under the authority of the city or county to be considered a
public approach. A planned city street or county road must be consistent with
734-051-0040(45) and must be or come under the authority of the city or county
to be considered a public approach.

(51) “Reasonable Access” means the ability to access a
property in a manner that meets the criteria under ORS 374.310(3).

(52) “Redevelopment” means the act or process of
changing existing development including replacement, remodeling, or reuse of
existing structures to accommodate new development that is consistent with
current zoning. Redevelopment occurs in urban areas. It may also occur in rural
areas on commercial or industrial zoned land where the land has been developed
into an urban block pattern including a local street network, and the posted
highway speed is at or below 45 miles per hour.

(53) “Region Access Management Engineer” means a
professional engineer employed by the Department who by training and experience
has comprehensive knowledge of the Department’s access management rules,
policies, and procedures, or as specified in an Intergovernmental Agreement
delegating permitting authority as set forth in OAR 734-051-0035(3).

(54) “Region Manager” means the person in charge of one
of the Department’s Transportation Regions or designated representative.

(55) “Reservation of Access” means a limitation of a
common law right of access to a specific location where the Department has
acquired access control subject to restrictions that are designated in a deed.
A reservation of access may include a use restriction limiting the right of
access to a specified use or restriction against a specified use. A use
restriction included in a reservation of access does not restrict turning
movements nor does the absence of a use restriction allow unrestricted turning
movements. A reservation of access affords the right to apply for an approach
but does not guarantee approval of an Application for State Highway Approach or
the location of an approach.

(56) “Restricted Use Approach” means an approach that
is intended to provide vehicular access for a specific use and for a limited
volume of traffic. Such uses are determined by the Department and may include
emergency services, government, and utility uses. A mitigation required as a
part of approach permit approval or a condition on a construction permit does
not by itself create a “restricted use approach.”

(57) “Right of access” means the right of ingress and
egress to the roadway and includes a common law right of access, reservation of
access, or grant of access.

(58) “Right of way” means real property or an interest
in real property owned by the Department as defined in the 1999 Oregon Highway
Plan.

(59) “Rural” means the area outside the urban growth
boundary, the area outside a Special Transportation Area in an unincorporated
community, or the area outside an Urban Unincorporated Community defined in OAR
660-022-0010(9).

(60) “Safety factors” include the factors identified in
OAR 734-051-0080(8).

(61) “Signature” means the signature of the specific
individual or an authorized officer of the corporation or partnership and must
include the name of the corporation or partnership licensed as set forth in ORS
60.111, and which maintains a registered agent and registered office in this
state.

(62) “Spacing Standards” mean Access Management Spacing
Standards as set forth in OAR 734-051-0115 and specified in Tables 1, 2 and 3
adopted and made a part of division 51 rules and Access Management Spacing
Standards for Approaches in an Interchange Area as set forth in OAR
734-051-0125 and specified in Tables 4, 5, 6 and 7 and Figures 1, 2, 3 and 4,
adopted and made a part of division 51 rules.

(63) “Temporary approach” means an approach that is
constructed, maintained, and operated for a specified period of time not
exceeding two years, and removed at the end of that period of time.

(64) “Traffic Impact Study” means a report prepared by
a professional engineer that analyzes existing and future roadway conditions
resulting from the applicant’s development.

(65) “Trip” means a one-way vehicular movement that
consists of a motor vehicle entering or exiting a property. A vehicle entering
a property and later exiting that property has made two trips.

(66) “Urban” means the area within the urban growth
boundary, within a Special Transportation Area of an unincorporated community,
or within an Urban Unincorporated Community defined in OAR 660-022-0010(9).

(67) “Vehicle trips per day” means the total of all
one-direction vehicle movements with either the origin or destination inside
the study site that includes existing, primary, pass by, and diverted linked
trips and is calculated in accordance with the procedures contained in the
current edition of the Institute of Transportation Engineers (ITE) publications
Trip Generation and Trip Generation Handbook. Adjustments to the standard rates
in the ITE publications for mode split may be allowed if calculated in
accordance with Transportation Planning Rule and the ITE procedures.
Adjustments to the standard rates for multi-use internal site trips may be allowed
if calculated in accordance with ITE procedures and if the internal trips do
not add vehicle movements to the approaches to the highway.

(68) “Vehicular Access” means access by motorized
vehicles to a property from a street, roadway, highway, easement, service road,
or alley including singular or joint access.

(69) “Work Day” means Monday through Friday and
excludes holidays.

[Publications: Publications
referenced are available from the agency.]

[ED. NOTE: Tables & Figures
referenced are available from the agency.]

(1) This rule applies to private approaches existing
under a valid Permit to Operate and private grandfathered approaches.

(2) As used in this rule -0045 “peak hour” of the site
means the hour during which the highest volume of traffic enters and exits the
property during a typical week.

(3) A change of use of an approach occurs, and an
application must be submitted, when an action or event identified in subsection
(a) of this section, results in an effect identified in subsection (b) of this
section.

(a) The Department may review an approach at the time
of an action such as:

(A) Zoning or plan amendment designation changes;

(B) Construction of new buildings;

(C) Floor space of existing buildings increase;

(D) Division or consolidation of property boundaries;

(E) Changes in the character of traffic using the
approach;

(F) Internal site circulation design or inter-parcel
circulation changes; or

(G) Reestablishment of a property’s use after
discontinuance for four years or more.

(b) An application must be submitted when an action in
subsection (a) of this section may result in any of the following:

(A) The
number of peak hour trips increases by 50 trips or more from that of the
property’s prior use and the increase represents a 20 percent or greater
increase in the number of peak hour trips from that of the property’s prior
use.

(B) The number of trips on a typical day increases by
500 trips or more from that of the property’s prior use and the increase represents
a 20 percent or greater increase in the number of trips on a typical day from
that of the property’s prior use.

(C) ODOT demonstrates that safety or operational
problems related to the approach are occurring.

(D) The approach does not meet a stopping sight
distance requirement (measured in feet) of 10 times the posted speed of the
roadway (measured in miles per hour) or 10 times the 85th percentile speed of
the roadway where the 85th percentile speed is higher or lower than the posted
speed.The permittee may perform a
study to determine if the 85th percentile speed is higher or lower than the
posted speed. The sight distance measurement and the study to determine the
85th percentile speed shall be performed according to published Department procedures
by or under the supervision of an engineer registered in the state of
Oregon.

(E) The daily use of an approach increases by 10 or
more vehicles with a gross vehicle weight rating of 26,000 pounds or greater.

(c) An
effect in subsection (b) of this section may be determined by:

(A) Field counts;

(B) Site observation;

(C) Traffic Impact Study;

(D) Field measurement;

(E) Crash history;

(F) Institute of Transportation Engineer Trip
Generation Manual; or

(G) Information and studies provided by the local
jurisdiction.

(d) Mitigation of the change of use of an approach
shall be limited to addressing the identified safety or operational problems.

(4) The following actions do not constitute a change of
use:

(a) Modifications in advertising, landscaping, general
maintenance, or aesthetics not affecting internal or external traffic flow or
safety; or

(b) Buildout or redevelopment of an approved site plan
or multi-phased development within the parameters of a Traffic Impact Study
that is less than five years old or where within parameters of the future year
analysis of the Traffic Impact Study, whichever is greater, and that is
certified by a Professional Engineer.

(1) The Department shall document decisions made under
Division 51 rules with written findings and shall provide written notice to
applicants:

(a) Written findings shall be provided to the applicant
upon request;

(b) Materials submitted by the applicant become the
property of the Department;

(c) The Region Manager may waive requirements for
information and documentation required from an applicant depending on the
nature of the application and on the sufficiency of other information available
to the Department for its evaluation of an application;

(d) Where necessary to comply with the permitting
criteria under Division 51 rules, approval of an application may be conditioned
upon significant changes to a proposed site plan including relocation of
buildings, parking, circulation, reduction of intensity of use, or variances
from local jurisdictions; and

(e) Approval of an application may require mitigation
measures set forth in OAR 734-051-0145.

(2) The Department, applicant, or local government may
request a pre-application meeting to discuss the approach application process.

(3) An application is required:

(a) For a new private approach to a state highway;

(b) When a change of use occurs as set forth in OAR
734-051-0045;

(c) For a temporary approach to a state highway; or

(d) For a restricted use approach to a state highway.

(4) An application accompanied by a site plan must be
submitted for each approach requested. All of the following apply to an
application:

(a) The Department shall not accept an application for
an approach to a freeway, a freeway ramp, or an expressway ramp, or where an
approach would be aligned opposite a freeway or expressway ramp terminal.

(b) The Department shall require written evidence of
concurrence by the owner where an applicant is not the property owner.

(c) The Department may refuse to accept an application
that is incomplete or contains insufficient information to allow the Department
to determine if supplemental documentation is required or otherwise determine
that the application may be deemed complete.

(5) The Department shall determine if an application is
deemed complete:

(a) Within 30 days of accepting an application when
section (6) of this rule does not require supplemental documentation; or

(b) When the supplemental documentation is received and
the Department determines that the supplemental documentation is sufficient to
evaluate the application, if section (6) of this rule requires supplemental
documentation.

(6) The Department may require supplemental
documentation before an application is deemed complete, and the Region Manager:

(a) May conduct an on-site review to determine the need
for supplemental documentation before an application is deemed complete. The
on-site review area includes both sides of the highway in the vicinity of the
proposed approach including:

(A) The site frontage;

(B) All approaches; and

(C) The nearest public intersections within a distance
less than the applicable spacing standard distance.

(b) May meet with the applicant to discuss the
supplemental documentation including definition and degree of specification;

(c) Shall notify an applicant, within 30 days of
accepting an application, of the supplemental documentation necessary for an
application to be deemed complete;

(d) Shall notify an applicant, within 30 days of
accepting an application, that an application may not be deemed complete where
no right of access exists; and

(A) An applicant may apply for an Application for a
Grant of Access or Application for an Indenture of Access;

(B) An application for a Grant of Access or Application
for an Indenture of Access must be submitted concurrently with an Application
for State Highway Approach;

(f) May require a Traffic Impact Study for proposed
developments or land use actions where the on-site review indicates that
operational or safety problems exist or are anticipated; and

(g) Shall notify the applicant that required
supplemental documentation, including an application for a grant of access or
indenture of access, must be submitted within 60 days of the date of notice of
supplemental documentation or the application expires.

(7) All of the following apply when a Traffic Impact
Study is required:

(a) A Professional Engineer employed by the Department
shall determine the scope of the study and shall review and comment on the
study.

(b) Future year analyses apply to both public and
private approaches and include year of each phase opening and future year
beyond build out, based on vehicle trips per day and type of land use action,
but not greater than the year of planning horizon for transportation system
plans or 15 years, whichever is greater.

(c) A Professional Engineer must prepare the study in
accordance with methods and input parameters approved by the Department.

(d) The scope and detail of the study must be
sufficient to allow the Department to evaluate the impact of the proposal and
the need for roadway capacity, operational, and safety improvements resulting
from the approach.

(e) The study must identify the data and the
application of data in the analysis.

(f) The study may be sufficient to satisfy the
requirements of this rule without being adequate to satisfy local government
requirements or the Transportation Planning Rule.

(8) When necessary to comply with the permitting
criteria of division 51 Rules the Department shall evaluate an application that
is deemed complete and shall approve or deny that application within 120 days
including a final order as set forth in OAR 734-051-0355:

(a) The final 60 days of the 120 days are reserved for
the Contested Case Hearing process set forth in OAR 734-051-0355;

(b) The Department shall use division 51 and ORS
Chapter 374 and may use other applicable statutes, administrative rules, or
manuals to evaluate and act on an application;

(c) If an application is approved, the Department shall
issue a Construction Permit or a Permit to Operate as set forth in sections
(10) through (13) of this rule; and

(d) Denial of an application is an appealable decision.

(9) If approval of an approach requires a deviation
from access management spacing standards or access management spacing standards
for approaches in an interchange area, a Traffic Impact Study may be required
and the Department may approve or deny the deviation as set forth in OAR
734-051-0135:

(a) Approval of a deviation may be conditioned upon
changes to a proposed site plan including relocation of buildings, changes to
parking or circulation, reduction of the intensity of use, or variances from
local jurisdiction regulations; and

(b) Denial of a deviation from spacing standards is an
appealable decision.

(10) If a land use action is pending, including an
appeal of a final land use decision or a limited land use decision, for a
property for which an application has been submitted, the application may be
accepted and processed:

(a) Approval will be conditioned on the Department
receiving notice of approval of the land use action shown on the application.

(b) A Construction Permit may be issued while the local
land use action is pending. A deposit may be required, to be determined in the
manner used for a Temporary Approach in OAR 734-051-0095(2), to ensure that the
approach will be removed if the land use is not approved.

(c) A Permit to Operate shall not be issued until the
applicant provides the Department with written proof of final land use
decision.

(11) To obtain a Construction Permit an applicant must
submit construction drawings and plans within 60 days of notice of approval of
an application when use of the Department’s standard drawings is not
appropriate. The Region Manager determines the acceptability of submitted
construction plans. If plans are not submitted within the 60 days and no
request for extension is received within that time, the approval will be void.

(12) The Department shall issue a Construction Permit
as set forth in OAR 734-051-0175 upon approval of an application and approval
of construction drawings and plans where required; and

(a) An approach approved by a Construction Permit must
be constructed as required by OAR 734-051-0175 through 734-051-0245; and

(b) An applicant must have insurance, bonds, and
deposits in place before construction begins and must provide 30 days written
notice of cancellation or intent not to renew insurance coverage as set forth
in OAR 734-051-0215.

(13) The Department shall issue a Permit to Operate as
set forth in OAR 734-051-0245, except that a Permit to Operate is not required
for a public approach under ORS 374.310.

(14) An applicant may request a Region Review of an
appealable decision within 21 days of notice of that decision as set forth in
OAR 734-051-0345:

(a) An applicant may request a collaborative discussion
within the Region Review process; and

(b) The Region Review process stays the 120-day
timeline for approval or denial of an application.

(c) An applicant may request a Contested Case Hearing
following a Region Review and the hearing will be on the original decision.

(15) An applicant may request a Contested Case Hearing
of an appealable decision within 21 days of notice of that decision, or within
21 days of notice of a Region Review decision, as set forth in OAR
734-051-0355.

(16) Division 51 timelines may be extended if the
applicant and the Department agree in writing before the applicable deadline,
as specified in these rules. Any agreement to extend a timeline shall include a
new deadline date and shall state the reason for the extension. Applications
for which an extension of time has been issued will expire on the deadline date
specified in the extension letter if no new extension has been agreed to and
the activities for which the deadline was extended have not been completed.

(17) An application will expire after 120 days of
inactivity on the part of the applicant if the Department sends a reminder
letter to notify the applicant that 90 days have passed with no activity, and
advising that the application will expire in 30 days if the application
continues to be inactive. Submittal of any information after the date of
expiration will require a new application.

(18) A new public approach shall not be located on a
freeway, a freeway ramp, or an expressway ramp. A new public approach that
would be aligned opposite a freeway or expressway ramp must be included in an
Interchange Area Management Plan or Access Management Plan, approved by the
ODOT Chief Engineer and adopted by the Oregon Transportation Commission.

(a) Existence of a recorded easement does not by itself
establish a right of access and does not guarantee the approval of an
application or the location of an approach.

(b) If an application is for a double-frontage property
the approach must be located on the lower classification highway except where
the Region Access Management Engineer determines that an approach to the higher
classification highway would better meet the approval criteria in sections (2)
through (10) of this rule.

(c) Where a development includes multiple parcels, the
development is evaluated in its entirety, regardless of the number of
individual parcels or ownership contained within the development, and
applications will not be accepted for individual parcels or ownership.

(2) For a private approach with no alternate access to
the property the Region Manager shall approve an application if the applicant
demonstrates that section (9) of this rule is met.

(3) For a private approach in a rural area and on a
statewide, regional, or district highway or an expressway or within the
influence area of an expressway interchange or freeway interchange, with
alternate access to the property, the Region Manager shall approve an
application if the applicant demonstrates that:

(a) Either:

(A) The alternate access cannot be made reasonable as
set forth in section (7) of this rule; or

(B) The proposal is for infill or redevelopment and
approval of the proposal will result in a net reduction of approaches on the
highway or the net result improves safety for any remaining approaches; and

(b) Section (9) of this rule is met.

(4) For a private approach in an urban area and on a
statewide, regional, or district highway or within the influence area of an
expressway interchange or freeway interchange, with alternate access to the
property, the Region Manager shall approve an application, even where the
Department has evidence that the alternate access is reasonable, if the
applicant provides substantial evidence that demonstrates that:

(a) The alternate access is not reasonable as set forth
in section (7) of this rule; and

(b) Section (9) of this rule is met.

(5) For a private approach in an urban area and on a
statewide, regional, or district highway or within the influence area of an
expressway interchange or freeway interchange, with alternate access to the
property, the Region Manager shall approve an application if the applicant
demonstrates that:

(a) The alternate access is reasonable as set forth in
section (7) of this rule; and

(b) Section (9) and section (10) of this rule are met.

(6) For a private approach in an urban area and on an
expressway, with alternate access to the property, the Region Manager shall
approve an application if the applicant demonstrates that:

(a) The alternate access cannot be made reasonable as
set forth in section (7) of this rule, and section (9) and section (10) of this
rule of this rule are met; or

(b) The approach provides an immediate and long-term
benefit to the state highway system, as set forth in OAR 734-051-0085,
regardless of any required safety or operations mitigation measures, and section
(9) of this rule is met.

(7) Which approval criteria will be applied to an
application (sections (2) through (6) of this rule) depends in part upon
whether alternate access to the site is or can be made reasonable, which is
determined based upon the following:

(a) The Department determines that alternate access to
the property is sufficient to allow the authorized uses for the property
identified in the acknowledged local comprehensive plan.

(b) The Department determines that the type, number,
size and location of approaches are adequate to serve the volume and type of
traffic reasonably anticipated to enter and exit the property, based on the
planned uses for the property.

(c) The Department may require mitigation measures are
set forth in OAR 734-051-0145:

(A) Including where the applicant or the local
jurisdiction commits proportional shares for the cost of removal or mitigation
of geographic, safety, or physical restrictions on the property or local street
network; and

(B) Neither a lack of commitment by a local government
to share the cost of mitigation nor the cost of mitigation alone is
determinative in evaluating whether the access is or could be made reasonable.

(e) Where a significant difference exists between an
existing and planned local road network, a phased method addressing access may
be considered:

(A) Where a planned public street or road network
cannot be provided at the time of development, an application may be approved
with conditions requiring connection when such connection becomes available;

(B) The approach permit may be revoked and the approach
removed, or the approach permit may be modified and mitigation required when
the planned street or road network becomes available; and

(C) An agreement with the local government regarding the
planned street or road network may be an intergovernmental agreement.

(8) For purposes of Division 51, safety factors
include:

(a) Roadway character;

(b) Traffic character;

(c) Geometric character;

(d) Environmental character; and

(e) Operational character.

(9) As required by sections (2) through (6) of this
rule an applicant must demonstrate, consistent with Division 51 rules, that:

(a) The approach is consistent with safety factors in
section (8) of this rule;

(b) Spacing standards are met or a deviation is
approved as set forth in OAR 734-051-0135; and

(c) The effect of the approach meets traffic operations
standards, signals, or signal systems standards in OAR 734-020-0400 through
734-020-0500 and 734-051-0115 and 734-051-0125.

(10) As required by sections (5) and (6) of this rule
the Department may require an applicant to demonstrate that:

(a) Highway mobility standards are met on state
highways;

(b) The approach is consistent with an Access
Mitigation Proposal, Access Management Strategy, or Access Management Plan for
the segment of highway abutting the property, if applicable;

(c) The site plan shows that the site circulation does
not require vehicles, once on site, to reenter the highway to access parking or
other portions of the development; and

(d) More than one approach to the highway is necessary
to accommodate traffic reasonably anticipated to the site if multiple
approaches are requested.

(1) A deviation will be considered when an approach
does not meet spacing standards and the approach is consistent with safety
factors in OAR 734-051-0080(8). The information necessary to support a
deviation must be submitted with an application or with the supplemental
documentation as set forth in OAR 734-051-0070(5) and (6).

(2) For a private approach with no reasonable alternate
access to the property, as identified in OAR 734-051-0080(2), spacing standards
are met if property frontage allows or a deviation is approved as set forth in
this section. The Region Manager shall approve a deviation for a property with
no reasonable alternate access if the approach is located:

(a) To maximize the spacing between adjacent
approaches; or

(b) At a different location if the maximized approach
location:

(A) Causes safety or operational problems; or

(B) Would be in conflict with a significant natural or
historic feature including trees and unique vegetation, a bridge, waterway,
park, archaeological area, or cemetery.

(b) The applicant provides a joint approach that serves
two or more properties and results in a net reduction of approaches to the
highway;

(c) The applicant demonstrates that existing
development patterns or land holdings make joint use approaches impossible;

(d) Adherence to spacing standards will cause the
approach to conflict with a significant natural or historic feature including
trees and unique vegetation, a bridge, waterway, park, archaeological area, or
cemetery;

(e) The highway segment functions as a service road;

(f) On a couplet with directional traffic separated by
a city block or more, the request is for an approach at mid-block with no other
existing approaches in the block or the proposal consolidates existing
approaches at mid-block; or

(g) Based on the Region Access Management Engineer’s
determination that:

(A) Safety factors and spacing significantly improve as
a result of the approach; and

(B) Approval does not compromise the intent of these
rules as set forth in OAR 734-051-0020.

(4) When a deviation is considered, as set forth in
section (1) of this rule, and the application results from infill or
redevelopment:

(a) The Region Access Management Engineer may waive the
requirements for a Traffic Impact Study and may propose an alternative solution
where:

(A) The requirements of either section (2) or section
(3) of this rule are met; or

(B) Safety factors and spacing improve and approaches
are removed or combined resulting in a net reduction of approaches to the
highway; and

(b) Applicant may accept the proposed alternative
solution or may choose to proceed through the standard application review
process.

(5) The Region Access Management Engineer shall require
any deviation for an approach located in an interchange access management area,
as defined in the Oregon Highway Plan, to be evaluated over a 20-year horizon
from the date of application and may approve a deviation for an approach
located in an interchange access management area if:

(a) A condition of approval, included in the Permit to
Operate, is removal of the approach when reasonable alternate access becomes
available;

(b) The approach is consistent with an access
management plan for an interchange that includes plans to combine or remove
approaches resulting in a net reduction of approaches to the highway;

(c) The applicant provides a joint approach that serves
two or more properties and results in a net reduction of approaches to the
highway; or

(d) The applicant demonstrates that existing
development patterns or land holdings make utilization of a joint approach
impracticable.

(6) The Region Access Management Engineer shall not
approve a deviation for an approach if any of the following apply:

(a) Spacing standards can be met even though adherence
to spacing standards results in higher site development costs.

(b) The deviation results from a self-created hardship
including:

(A) Conditions created by the proposed site plan,
building footprint or location, on-site parking, or circulation; or

(B) Conditions created by lease agreements or other
voluntary legal obligations.

(7) The Region Access Management Engineer shall not
approve a deviation for an approach in an interchange access management area
where reasonable alternate access is available and the approach would increase
the number of approaches to the highway.

(8) Where section (2), (3), (4) or (5) of this rule
cannot be met, the Region Manager, not a designee, may approve a deviation
where:

(a) The approach is consistent with safety factors; and

(b) The Region Manager identifies and documents
conditions or circumstances unique to the site or the area that support the
development.

(9) The Region Manager may require an intergovernmental
agreement or completion of an access management plan or an interchange area
management plan prior to approval of a deviation to construct a public
approach.

(10) Approval of a deviation may be conditioned upon
mitigation measures set forth in OAR 734-051-0145.

(1) The Department shall issue a Permit to Operate for
a private approach upon approval of an application, where no Construction
Permit is required, or upon notification by the applicant that construction is
complete and when the approach conforms to the terms and conditions of the
Construction Permit.

(2) Use of a private approach is legal only after a
Permit to Operate is issued.

(1) An applicant, permitee, or owner of a grandfathered
approach must obtain approval and necessary permits prior to performing
maintenance on an approach that interferes with or interrupts traffic on or
along a highway.

(2) Where traffic signals are required, signal
maintenance is performed by the Department or as assigned by a Cooperative Cost
Agreement.

(3) For a public approach, the Department may require
an intergovernmental agreement with the city or county to define
responsibilities and obligations for maintenance of the approach.

(a) For a grant of access approved prior to April 1,
2000, the grant of access does not guarantee approval of an Application for
State Highway Approach or issuance of a Construction Permit or Permit to
Operate; and

(b) Subsequent to April 1, 2000, the Department may
approve an Application for a Grant of Access only where an Application for State
Highway Approach or a Construction Permit or Permit to Operate may be approved.

(c) Subsequent to January 21, 2011, where no right of
access exists for a public approach, an application for a Grant of Access must
be submitted.

(2) The applicant for a grant of access must be the
owner of the property abutting the highway right of way or the owner’s
designated agent.

(3) The Department shall not approve an Application for
a Grant of Access for a private approach:

(a) On a freeway, freeway mainlines, or freeway ramp;

(b) On an expressway or expressway ramp;

(c) Opposite a freeway or expressway ramp terminal; or

(d) In an Interchange Management Area.

(4) The Department may approve an Application for a
Grant of Access to private property abutting a state and local facility where
all of the following conditions are met:

(a) An applicant submits an Application for State
Highway Approach as set forth in OAR 734-051-0070 and concurrently submits an
Application for a Grant of Access, as set forth in OAR 734-051-0305.

(b) An applicant meets the requirements for issuance of
a Construction Permit, as set forth in OAR 734-051-0175.

(c) The applicant agrees in writing to meet any
mitigation measures, terms, and conditions placed on the Construction Permit
and the Permit to Operate.

(d) The grant of access is consistent with the 1999
Oregon Highway Plan.

(e) One of the following occurs:

(A) The Department determines that access control is no
longer needed at the location specified in the Application for a Grant of
Access as set forth in section (7) of this rule; or

(B) The applicant establishes that the grant of access
will benefit the state highway system as set forth in OAR 734-051-0085(1) and
(2).

(f) Alternate access to the property is not and cannot
be made reasonable as set forth in OAR 734-051-0080(7).

(g) The property owner must agree to deed restrictions
to ensure that future development intensity and trip generation can be safely
accommodated by the state transportation system.

(h) The application is approved by the Region Manager
and reviewed by the State Traffic Engineer, and approved by the Technical
Services Manager.

(5) The Department shall not approve an Application for
a Grant of Access for a public approach:

(a) On a freeway, freeway mainlines, or freeway ramp;

(b) On an expressway ramp;

(c) Opposite a freeway or expressway ramp terminal; or

(d) In an Interchange Management Area.

(6) The Department may approve an Application for a
Grant of Access for a public approach to a state highway where all of the
following conditions are met:

(a) An applicant submits an Application for a Grant of
Access, as set forth in OAR 734-051-0305.

(b) The applicant meets the requirements for issuance
of a Construction Permit, as set forth in OAR 734-051-0175.

(c) The applicant agrees in writing to meet any
mitigation measures, terms, and conditions placed on the Construction Permit
and the Permit to Operate.

(d) The grant of access is consistent with the 1999
Oregon Highway Plan, an adopted corridor plan, and local transportation system
plan, or in the absence of an adopted corridor plan or transportation system
plan, a grant of access may be considered where the applicant has explored all
possible alternatives to the connection, including parallel streets, and the
purchase of additional right of way.

(e) One of the following occurs:

(A) The Department determines that access control is no
longer needed at the location specified in the Application for a Grant of
Access as set forth in section (7) of this rule; or

(B) The applicant establishes that the grant of access
will benefit the state highway system as set forth in OAR 734-051-0085; and

(i) The Department may determine that a benefit to the
state highway system exists where the proposed connection is a public facility
with a functional classification of collector or higher and is identified in an
adopted transportation system plan, consistent with OAR 660-012-0000 through
660-012-0070; and

(ii) The Department shall require supporting
documentation of sufficient detail to determine that a benefit to the state
highway system exists, as set forth in OAR 734-051-0085(1) and (2), to be
included in the transportation system plan; and

(iii) The Department shall determine if the supporting
documentation is sufficient to meet the requirements in subparagraph (ii) of
this paragraph.

(f) The Department and the local jurisdiction
requesting a grant of access for a public approach:

(A) Shall enter into an intergovernmental agreement
that details the responsibility for construction, maintenance, operation and
cost of the public approach; and

(B) May enter into an intergovernmental agreement that
addresses transportation plan and land use amendments or modifications to
ensure that planned development intensities and trip generation can be safely
supported on the state transportation system.

(g) The application is approved by the Region Manager
and reviewed by the State Traffic Engineer, and approved by the Technical
Services Manager.

(7) For the purposes of sections (4) and (6) of this
rule, the Department shall consider the following factors in determining
whether access control is still needed at the location specified in an
application for a grant of access:

(1) The Department may approve an Application for
Indenture of Access to a property abutting a state or local facility where all
of the following conditions are met:

(a) An applicant for a private approach submits an
Application for State Highway Approach as set forth in OAR 734-051-0070 and
concurrently submits an Application for Indenture of Access as set forth in OAR
734-051-0325;

(b) The applicant meets the requirements for issuance
of a Construction Permit, as set forth in OAR 734-051-0175;

(c) The applicant agrees in writing to meet any
mitigation measures, conditions, and terms placed on the Construction Permit
and the Permit to Operate;

(d) The Region Manager approves the Application for
Indenture of Access; and

(e) The property owner agrees to the closure of one or
more existing reservations of access.

(2) All of the property owners that have a right of
access at and are currently being served by the existing reservation of access
must be applicants for any Application for Indenture of Access.

(3) A request for removal of farm crossing or farm
access restrictions requires a grant of access as set forth in OAR 734-051-0295
and 734-051-0305.

(4) Approval of an Indenture of Access for a public
approach may require mitigation measures to ensure that the state transportation
system can safely accommodate the traffic at the indentured location.
Mitigation measures may include but are not limited to amendments to the
comprehensive plan or transportation system plan; or modification to the public
street system.

(1) The Region Review process is an optional process
that falls outside the 120-day timeline in OAR 734-051-0070(8) and applies to
appealable decisions.

(2) To request a Region Review, an applicant must
submit a written request to the Region Manager within 21 days of the mailing
date of notice of an appealable decision and identify documentation to be
presented at the Region Review.

(3) A Region Review Committee includes members with
expertise in:

(a) Access Management policies;

(b) Roadway design standards;

(c) Right-of-way;

(d) Traffic engineering; and

(e) At least one Professional Engineer with experience
in the issues being reviewed.

(4) The Department may invite a representative from the
affected local jurisdiction with land use or transportation knowledge to
provide input to the Region Review Committee.

(5) The applicant or permitee may present additional
information in writing or in person to the Region Review Committee.

(1) Pursuant to ORS 374.313, a person holding an interest
in real property, which is or would be served by an approach may appeal the
closure or denial of the approach under OAR 734-051-0355 by filing a claim for
relief when:

(a) The Department closes an approach for which a
permit was issued under ORS 374.310 or that was allowed by law prior to
enactment of statutory permit requirements for approach roads, or denies an
application for an approach at the location of a grant or reservation of
access; and

(b) Such closure or denial is not the result of conditions
contained in a contract, condemnation judgment, recorded deed or permit.

(1) Parties may agree to participate in mediation consistent
with the applicable provisions of ORS 36.180 to 36.210 at any time during the
process of determining the appropriate remedies, but prior to the final order
in any contested case under OAR 734-051-0355.

(2) During mediation the parties may discuss any
appropriate remedies in reaching agreement. Such mediation may also occur
during the collaborative discussion phase of the review procedure for the
denial or closure. (See OAR 734-051-0345).

(3) The property owner and the Department also may
enter into an agreement to collaborate if the Department determines that the
difference between the remedies offered and remedies claimed by the property
owner is less than $30,000.

(a) The agreement to collaborate may provide for a
mutually chosen mediator as defined in ORS 36.185 to 36.210 to review the
information made available to each party as of that time and other information
mutually agreed to by the parties.

(b) The value of the remedies offered and claimed will
include a dollar value assigned by the Department to any non-monetary remedies.
Such review will result in a recommendation of remedies, subject to the
condition that such remedies are neither less than the lower nor more than the
greater of the offer and claim, in terms of assigned monetary value.

(c) The remedies recommended by the third party will be
presented to the Director or the Director’s designee. The Director or designee
shall take this recommendation into consideration in making subsequent offers
of remedies.

Subject: This rule implements an ODOT pilot program to contract
out certain maintenance activities as specified in chapter 865, OL 2009,
Section 23 (HB 2001). ODOT is contracting with a private party for snow
removal. The contract specifies that ODOT will lease ODOT’s snow removal trucks
to the private contractor. The ODOT trucks are equipped with heavy frames,
enabling the trucks to be used efficiently for dual purposes, snow-plowing and
sanding. The heavy framed ODOT trucks exceed weight limits and operate loaded
only in work zones under weight limit exemptions. The purpose of the new rule
is to provide the private contractor the same weight limit exemptions the
department has when operating these trucks.

Rules Coordinator: Lauri Kunze—(503) 986-3171

734-070-0017

Weight Limitations –
Exception

The exemptions from maximum weight limitations in ORS
818.030(3), 818.070(3) and 818.140(3) apply to any department-owned vehicle,
combination of vehicles, article, machine or other equipment leased from the
department to a private contractor, when used under contract with the
department.

Stat. Auth.: ORS 184.616, 184.619,
818.030, 818.070, 818.140

Stats. Implemented: Or Laws 2009,
chapter 865, sec. 23

Hist.: HWD 2-2011, f. & cert.
ef. 1-28-11

Notes1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2010.